DOI:10.17951/k.2020.27.2.127- 148 ANNALES UNIVERSITATIS MARIAE CURIE-SKŁODOWSKA LUBLIN – POLONIA VOL. XXVII, 2 SECTIO K 2020 Maria Curie-Skłodowska University. Institute of Political Science and Administration AGNIESZKA ELŻBIETA DEMCZUK ORCID ID: https://orcid.org/0000-0003-2691-2043 The Discriminatory Legalism Strategy and Hate Speech Cases in Poland. The Role of the Commissioner for Human Rights in Fighting Discrimination ABSTRACT The regress of liberal democracy in the world has been progressing for years and the number of countries with the full democracy index is decreasing [Economist Intelligence Unit 2018, 2019; Freedom House 2018]. One of the serious threats to the rule of law and the human rights in modern democracy has become discrim- inatory legalism which is both strategy and weapon [Weyland 2013]. In order to weaken or marginalize the opposition and “rebellious” citizens, public authorities apply discriminatory legal instruments and democratic rules depending on who they are concerned with. Public authorities do this because of political views and use exclusion rhetoric, a language of hatred, stigmatizing all “strangers”, at last use hate speech on the Internet and beyond. The weaponization of hate speech is a convenient instrument for political struggle and the fight against inconvenient opponents. Hate speech is also used by far-right and nationalist organizations in the public sphere, which operate in an atmosphere of consent to their radical behaviour. Political hate speech plays an important role in the discriminatory legal strategy. Poland is included in the group of countries with flawed democracy (Article 7(1) TEU since 2017). The authorities introduced changes in law (which were defined as the “Frankensteinisation of legislation” by the Parliamentary Assembly of Council of Europe [PACE] in 2019), democratic institutions and the prosecution applies a discriminatory legalism strategy. This problem is highlighted by the current Commissioner for Human Rights which is an independent institution in the field of fighting hate speech (except a few independent media and NGOs informing about the hate speech phenomenon). Many of hate speech cases are discontinued or not taken up by the prosecution. The numbers of cases of hate speech and hate incidents are increasing but the Polish authorities use the underreporting mechanism. The Ombudsman warns that only 5% of cases are reported to the police. The language of hatred and contempt used by the authorities in Poland has become the weaponization in the fight against citizens as political opponents: LGBT+ community, refugees, political opponents, independent judges and others. Key words: Poland, discriminatory legalism, populism, hate speech, Commissioner for Human Rights, rule of law 128 AGNIESZKA ELŻBIETA DEMCZUK INTRODUCTION A dramatic change occurred in Polish constitutional politics in October 2015: a combined presidential and parliamentary victory of the populist Law and Justice party (PiS) began a series of deep political and legal changes which turned the con- stitutional order on its head in many respects. The end of the year 2015 witnessed the beginning of a fundamental transformation: abandonment of various dogmas of liberal democracy, constitutionalism and the rule of law, which so far had been taken for granted. The campaign, first against the Constitutional Tribunal (CT) and then against the regular courts, rested upon the idea that any restraints upon the political majority are by their nature antidemocratic [Sadurski 2018: 1]. The political, social and legal situation has changed dramatically. The Parliament adopted many amendments against the concept of the democratic state of law in 2015–2020.1 As a result of these developments, Poland, once a paradigm of a suc- cessful transition into democracy in the 1990s, has become a pariah of the European Union [Matczak 2019: 407]. According to the Economist Intelligence Unit [2020], the ruling2 Law and Justice party, which won the October 2019 parliamentary election again, will continue to implement controversial, nationalist policies. Its failure to address the rule of law issues may prompt the EU to try to impose sanctions on Poland. The ongoing crisis of liberal democracy in Poland and the failure to promote, protect and enforce the rule of law, the human rights and non-discrimination have more universal and deep-seated causes. This crisis is not endemic to Poland because liberal democracy is in crisis everywhere.3 According to the 2019 Democracy Index, 76 of the 167 countries (45.5% of all countries) can be considered to be democracies. The number of “full 1 The Parliament adopted the following amendments, e.g. the Civil Service Law in 2015 (higher civil service positions are filled by appointment rather than competition), the Public Prosecutor General Law in 2016 (the position of independent Public Prosecutor General was combined with the Ministry of Justice), the Surveillance Law in 2015 (the law opens the possibility of uncontrolled downloading Internet data by the police and special services), eight amendments to the Supreme Court in 2016–2019, the amendments to the Law on the Common Courts, the Law on the Supreme Court and Some Other Laws (known as “muzzle law”) in 2019 (the amendments diminish judicial independence and put Polish judges into the situation of having to face disciplinary proceedings for decisions required by the ECHR, the law of the European Union, and other international instruments), the Assembly Law in 2016 (the amendments introduced controversial provisions on cyclical assemblies which are criticized [e.g. Amnesty International, the Helsinki Foundation for Human Rights], regulations are unclear, favor one type of assembly, the decisions about an organization of the demonstrations that should be taken locally are in the hands of government administration) [see more: Everything…]. 2 The Polish government is co-created by: Law and Justice (Pol.: Prawo i Sprawiedliwość), a conser- vative-nationalist party, leading the informal United Right (Pol.: Zjednoczona Prawica) governing coalition, Agreement (Pol.: Porozumienie) a conservative-liberal party and United Poland (Pol.: Solidarna Polska) a conservative-nationalist party. 3 According to The Economist Intelligence Unit’s measure of democracy, almost one-half (48.4%) of the world’s population live in a democracy of some sort, although only 5.7% reside in a “full democra- cy”, down from 8.9% in 2015 as a result of the US being demoted from a “full democracy” to a “flawed THE Discriminatory LEGALISM Strategy AND Hate SPEECH CASES IN POLAND… 129 democracies” increased to 22 in 2019, up from 20 in 2018. The number of “flawed democracies” fell by one to 54 in 2019 [European Democracy Index 2019: 3]. And a wave of populism is sweeping across the advanced democracies in the northern hemisphere. Though in different forms and to different degrees, populism has begun to shape the political life of established democracies including the United States, the United Kingdom, France, Germany, Austria, the Netherlands, Sweden, Greece, Italy, as well as, perhaps most spectacularly in Europe, the more recent democracies of Hungary and Poland [Lacey 2019: 4]. Right-wing populist parties are currently growing more rapidly than ever before and have increased their voter support with 33% in four years [Timbro Authoritarian Populism Index 2019: 4]. One of the manifestations of populist policy is the use of the strategy of discrim- inatory legalism which is also a weapon in the fight against political opponents but can also serve to create the myth of a homogeneous sovereign. The discriminatory legalism is used to colonize civil society, silence critical voices in the public sphere, and harass the opposition [de la Torre 2017: 1275]. When the institutions such as the judiciary are taken over or co-opted by populists, a situation arises, called by some scholars forms of “abusive constitutionalism” or “discriminatory” or “autocratic legalism” [Müller 2017], in which the law itself is used to persecute minorities, to punish dissent, and to enforce executive power discursively legitimized by the will of the people [Lacey 2019: 14]. The Polish populist government and the United Right politicians supported by, e.g. the Catholic Church, the selected organizations, the public media and the selected right-wing media that have become the beneficiaries of “the good change” since the 2015 parliamentary election use the exclusive, stigmatizing and hateful language against all the “strangers” and “others” who are political opponents of the ruling party. The term “good change” means the deep changes in almost every area of public life in Poland due to the national and conservative spirit. The LGBT community, refugees, Ukrainians, judges, protesting doctors, teachers, and NGOs leaders have become victims of hate speech in Poland. The phenomenon of hate speech is widely present in cyberspace, especially in the social media, the public media and in many political statements. And the atmosphere of consent is observed in the public sphere. The goal of this article is to present the scale and extent of the hate speech phenomenon used as an instrument or the weapon of the discriminatory legalism strategy on the example of LGBT community and refugees, lack of action on the part of the authorities, as well as to present the role of the Commissioner for Human Rights in its fight against hate speech in Poland. Unfortunately, the Polish Ombudsman is the isolated authority that undertakes the actions in Poland to com- bat hate speech and to implement relevant education to counteract it. Almost every single independent institution in Poland is appropriated by the ruling party and its democracy” in 2016. More than one-third of the world’s population live under authoritarian rule, with a large share being in China [EIU, Democracy Index 2019: 3]. 130 AGNIESZKA ELŻBIETA DEMCZUK supporters, beneficiaries of the “good change”. The Commissioner is appointed by the Sejm and approved by the Senate for a 5-year term. The current Ombudsman’s term ends in 2020. METHODOLOGy The author used system analysis, decision-making, comparative, quantitative behavioural and empirical methods.